updated 2/11/2005 2:21:38 PM ET 2005-02-11T19:21:38

Guest: Katrina Vanden Heuvel, Byron York, Pat Robertson, James Lilley, Lee Hamilton, Thomas Kean

CHRIS MATTHEWS, HOST:  In its first public admission, North Korea defiantly declares it has nuclear weapons and rejects restarting disarmament talks, saying it needs to defend itself against the United States.  Is the Bush administration now facing twin nuclear threats from two members of what it calls the axis of evil? 

Plus, new information from the 9/11 Commission says months before the September 11 attacks, the FAA had dozens of warnings about hijackings.  Did the agency react properly?  We‘ll talk to the chairman and the vice chairman of the 9/11 Commission. 

Let‘s play HARDBALL.  

Good evening.  I‘m Chris Matthews. 

New information has come to light about aviation officials knew about the terrorist threat prior to 9/11.  A previously undisclosed report from the 9/11 Commission says the Federal Aviation Administration distributed a CD-ROM to airlines and airports in 2001 before the attacks that cited the possibility of a suicide hijacking.  And in the spring of 2001, the FAA warned airports that—quote—“If the intent of the hijacker is not to exchange hostages for prisoners, but to commit suicide in a spectacular explosion, a domestic hijacking would probably be preferable.”

Why did not the FAA toughen screening procedures and increase their air marshal ranks if they warned of suicide hijackings? 

Thomas Kean, the former governor of New Jersey, chaired the 9/11 Commission.  Congressman Lee Hamilton served as vice chairman.  And Roger Cressey was a member of the National Security Council when the 9/11 attacks happened. 

Governor Kean, I have got to ask you this.  Why did it take so long for us to find out that the FAA was warning airports and airlines of a possible suicide bombing in the United States before 9/11? 

THOMAS KEAN, CHAIRMAN, 9/11 COMMISSION:  Well, we submitted this report to the government in August.  But they didn‘t release it until now.  I can‘t tell you all the reasons.  I think probably a delay in the bureaucracy.  But they released it now and they released it with a number of censorships or redactions, which we don‘t think are also very necessary.  That ought to be cleaned up as well.

MATTHEWS:  Do you think it had to do with the election occurring in that meantime?   

KEAN:  No.  I think it is just bureaucratic delays and people lower down in the ranks who didn‘t consider this urgent and really didn‘t feel it had to let the public know this.  And people in the agency found it embarrassing.  So the combination I think held it. 

MATTHEWS:  Congressman Hamilton, one of the most famous remarks coming out of your commission hearings I think was Condoleezza Rice saying who could have imagined—the phrase was, I don‘t think anybody.  Let‘s take a look at this, because it clashes with this information, I think. 

(BEGIN VIDEO CLIP)

CONDOLEEZZA RICE, NATIONAL SECURITY ADVISER:  I don‘t think anybody could have predicted that these people would take an airplane and slam it into the World Trade Center, take another one and slam it into the Pentagon, that they would try to use an airplane as a missile, a hijacked airplane as a missile.  All of this reporting about hijacking was about traditional hijacking. 

(END VIDEO CLIP)

MATTHEWS:  Well, Congressman, obviously, somebody did think of this as a possible weapon.  In fact, a spectacular explosion was even imagined and figured into the thinking of the FAA.  Why wasn‘t something done if they knew that it might happen? 

LEE HAMILTON, VICE-CHAIRMAN, 9/11 COMMISSION:  Complacency, not just in the FAA and other branches of government.  But I think many branches of government, many departments simply did not believe the warnings could happen. 

And we found this through and through.  There had not been a hijacking in the United States for a very considerable period of time, several years, before 9/11.  A lot of other things were on people‘s minds.  The FAA was looking at delays in airport travel, congestion.  The Congress was debating the question of passenger rights for airline travelers.  Nobody was focused on the question of security.  And we paid a very heavy price for that. 

MATTHEWS:  Roger, it seems to me there‘s a lot of fragmentary evidence here that we could have known something was coming.  There was the PDB from August 6 of 2001, that August, where there was a headline that said bin Laden to attack inside the United States.  That‘s another case in which Condoleezza Rice was forced to embarrassingly admit she knew something. 

There‘s also the news that Governor Boren, Senator Boren from Oklahoma

·         he had both those jobs—was told by the CIA director the morning of the attack, I hope it‘s not that guy who was looking for flying lessons.  All this stuff.  Now the FAA report is saying that they were thinking about and warning airports and airlines to be aware of a possible suicidal hijacking.  None of this seemed to be clear in the months after 9/11.  There was so much of this scattered information.

ROGER CRESSEY, MSNBC COUNTERTERRORISM ANALYST:  Well, there were a couple of problems.

MATTHEWS:  Was somebody suppressing all this? 

CRESSEY:  No.  I don‘t think so. 

What you had was a lack of creativity, which the 9/11 Commission made very clear in their report.  It was a lack of information sharing.  And it was a belief that things were not going to happen in any way different from how they did in the past.  And what that means, Chris, is that all the intelligence pointed to an attack overseas.  That‘s how the United States government was oriented. 

And, as a result, certain things fell through the cracks. 

MATTHEWS:  Did the NSC, did Condi Rice‘s operation, ever discuss the possibility that the FAA was considering the possibility of using planes to blow up buildings? 

CRESSEY:  On July 5, we chaired a meeting in the Situation Room where we brought all the domestic agencies, including the FAA, together to brief them on the terror threat that was present then. 

And the whole idea of that briefing was, we don‘t know for sure that this attack is going to occur overseas.  It may happen domestically.  So, take a look at this information.  Think of what steps you should take to improve your security posture. 

MATTHEWS:  Let me go to Governor Kean. 

There was a defense by the administration offered up, I believe, during your commission hearings that they were primarily thinking about a threat coming overseas, rather than hitting the United States directly.  But this FAA report suggests that just the opposite.  We were thinking very much about a domestic attack. 

KEAN:  Well, they definitely had information in that direction, but they also had a lot of information about possible attacks overseas. 

And the real problem is, they did nothing overseas or here in the FAA. 

They didn‘t put on air marshals.  They didn‘t do the screening system,

which they knew wasn‘t any good.  They didn‘t improve that.  They did not -

·         they didn‘t stop the carrying on airplanes of small knives, which they had already said in their internal documents were a threat.  And that‘s what the hijackers in fact used.

It was just—Lee is right.  They were complacent.  There was no feeling of urgency either in this agency or throughout government. 

MATTHEWS:  Did they know about the Moussaoui situation out in Minnesota, that a guy was picked up for trying to learn how to fly a big plane? 

KEAN:  I don‘t believe they did, because that was not widely shared. 

The CIA shared it to the top.  The FBI stopped it midway up. 

Again, this is a whole problem that government really did not share information properly.  If you shared all that information and put what the FAA had together get with what the CIA and FBI had and all of that, you would have had a pretty complete puzzle and we might have taken some different actions. 

(CROSSTALK)

MATTHEWS:  Go ahead, Congressman.

HAMILTON:  Tom is right about that.  The FBI knew about—in Minneapolis—knew about Moussaoui.  They knew he was taking airplane lessons.  They knew something of his background.  But the FBI director didn‘t know it. 

MATTHEWS:  Well, why did the CIA director know? 

HAMILTON:  Well, I don‘t know.  But he got the report. 

MATTHEWS:  Yes. 

HAMILTON:  But, when he got the report, he didn‘t think it was any of his business, which in fact it was not, because his concern is foreign intelligence.  So he did not convey it to the president, did not confer with the FBI director about it. 

Now, as it turned out, of course, it was a big-time mistake.  But he acted, strictly speaking, within his responsibilities.  But that‘s another example of what Tom was talking about, and Roger, too.  They just didn‘t share information. 

MATTHEWS:  Well, let‘s talk about one agency‘s responsibility, the FAA.  The FAA was distributing high-tech CD-ROMs around the country warning people of a possible suicide hijacking.  What happened with these CD-ROMs?  Were they just left on people‘s desks?  Or what happened?  Did people see them?  Did they view them?  Did they act on them? 

CRESSEY:  I don‘t know.  But the CD-ROMs talked about scenarios.  It did not talk about specific threat information. 

Chris, the problem we had in the summer of 2001 was trying to figure out where the intelligence was pointing.  Four questions, you‘ll ask.  Is it credible?  Is it specific?  Can we corroborate it?  And is it imminent?  And the picture we had at the time pointed overseas.  The problem we had was that we did have not have specific information, threat information, going that direction.

MATTHEWS:  Let me tell you something.  Put it together.  It‘s not

complicated.  The guy up in Portland, Maine, a security guy up there, using

his witnesses, was saying, there‘s something about these guys, and not just

they were Middle Eastern.  There‘s something that told him—and I believe

·         there‘s a problem with these guys. 

They were challenging them.  Suppose he had seen this CD-ROM and said, there might be somebody coming through your airport to blow up a big building.  And they had already targeted the World Trade Center.  This isn‘t tabula rasa.  We had a history of them trying to blow up the World Trade Center.  Why does it require Einstein to see that, if a building is going to targeted, it‘s that one?  It would be a plane from that area? 

HAMILTON:  The problem, Chris, was, nobody put it together.  You didn‘t have anybody in charge.  You had bits and pieces of information in Boston.  You had in Minneapolis, you had in Washington nothing whole, but important bits of piece of information. 

But nobody said, I‘m in charge.  I‘m going to put all of these things together and analyze it.  And we just—we asked the question over and over again.  I think Tom asked it a number of time.  Who is in charge? 

MATTHEWS:  Yes. 

HAMILTON:  And the answer we got was not as clear as we would like to be. 

(CROSSTALK)

MATTHEWS:  I‘m trying to get down to something.  It may seem anecdotal.  But the morning of the attack, the security guy—I just heard him interviewed a couple days—a couple weeks ago.  He said, up in Maine, it was Mohamed Atta, the leader.  He was absolutely obnoxious insisting on getting two boarding passes. 

He wanted not just a boarding pass to get on a plane in Maine in Portland.  He wanted the second one to get back on the other plane and he was insistent.  Now, why would a guy be insistent on getting two boarding passes and fight over it with a security guy? 

CRESSEY:  It‘s a lack of awareness, I think most importantly.  And it‘s a lack of being...

MATTHEWS:  He clearly wanted to get through security in Boston. 

CRESSEY:  Oh, sure.

MATTHEWS:  He didn‘t want any trouble. 

CRESSEY:  But the security people were not looking for this type of threat.  And that‘s part of the problem with being proactive vs. reactive, Chris.  

MATTHEWS:  Yes. 

CRESSEY:  In the summer of 2001, domestically, we were reactive.  We were not proactive.  And that is a great example of that reactive and passive nature we had at the time.

MATTHEWS:  Do you think—let me ask Governor Kean about that particular situation. 

We now know that the FAA was issuing warnings to airlines and to airports to be aware there‘s a possible, one of the scenarios would be a hijacking aimed at suicide bombing in a spectacular explosion.  We knew that the World Trade Center had been targeted for explosion before by al Qaeda. 

What could we have done to make sure that particular guy who had an instinct there was a problem with this passenger to have held him there and say you‘re not getting on the plane?

KEAN:  We could have made it a priority.  We didn‘t.  We weren‘t aware of it.  We were looking in other directions.  We weren‘t paying any attention.  We could have made it a priority, in addition to the videos. 

We could have simply said to the pilots and the crews on the planes, you know, there were a lot of terrorist threats this last summer, more than ever in our history.  Be aware.  Watch out for this kind of stuff.  We were complacent. 

(CROSSTALK)

MATTHEWS:  Are you confident, Governor—and we only have a half a minute here.  It‘s great to have you on, by the way, all of you.

But do you think we‘re safe now with these air marshals?  Can one man or a couple men or women who are armed and professional, can they stop something like this, like 9/11? 

KEAN:  The best defense is not the air marshals.  It is the people on the plane.  Frankly, if you see something doing something suspicious now, you are not going to let him get into the cockpit.  You‘re probably going to jump him.  And that means all the passengers. 

(CROSSTALK)

MATTHEWS:  Why don‘t we train passengers to do that, Governor, right now? 

(CROSSTALK)

MATTHEWS:  Why are not we telling passengers, read this manual?  If you see guys going for the cockpit, stop them. 

KEAN:  I don‘t think you have to read the manual.  I would do that if I was on a plane.  I think you would, too.

MATTHEWS:  All right.  OK.  Well, I hope I would.  We all hope we would.  That‘s called grace under fire.

Anyway, thank you very much, Governor Thomas Kean, Lee Hamilton, my friend, congressman from Indiana all those years, and Roger Cressey, as he calls himself, a former bureaucrat. 

Up next, how should the Bush administration handle North Korea now that that reclusive, strange communist country has publicly announced that it has in fact nuclear weapons?  I‘ll ask former New York Congressman, in fact former U.S. Ambassador James Lilley. 

This is HARDBALL, only on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, after North Korea announced it has nuclear weapons, what‘s the Bush administration next move?  I‘ll ask James Lilley, the former U.S. ambassador to China and South Korea, when HARDBALL returns.

(NEWS BREAK)

MATTHEWS:  North Korea stated publicly for the first time today that it has nuclear weapons and it will boycott U.S.-sponsored regional talks with China, Russia, Japan, and South Korea.  This is an about-face for North Korea, which hinted last month that they would return to the negotiating table. 

HARDBALL correspondent David Shuster reports. 

(BEGIN VIDEOTAPE)

DAVID SHUSTER, NBC CORRESPONDENT (voice-over):  While the U.S. has long had suspicions about North Korea, the declaration today by Kim Jong Il‘s government was still dramatic.  His foreign ministry issued a statement saying: “We have manufactured nuclear weapons for self-defense to cope with the Bush administration‘s ever-more undisguised policy to isolate and stifle our country.”

At the State Department, the announcement caught U.S. diplomats by surprise and prompted this response in Europe from Condoleezza Rice. 

RICE:  This is an unfortunate move, most especially probably for the people of North Korea, because it only deepens the North Korean isolation from the rest of the international community. 

SHUSTER:  North Korea expelled the last U.N. nuclear monitors more than two years ago.  Since then, North Korean officials have privately claimed they had nuclear bombs and soon might test one. 

The Bush administration has been trying with the help of five other nations in the region to restart disarmament talks.  The talks have gone nowhere.  And North Korea has repeatedly cited what it calls America‘s policy of hostility as the reason for building nuclear weapons. 

But some analysts believe the news today may be a sign North Korea is ready to begin new discussions. 

BALBINA HWANG, HERITAGE FOUNDATION:  It wants world attention and it want to try to raise the risk factor, because it always has more to gain by doing so.  It has more to gain at the negotiating table. 

SHUSTER:  Regardless of North Korea‘s intentions, there are fears the communist nation is already selling nuclear materials and technology to U.S. enemies, including Iran. 

Iran is vowing to become a nuclear power.  And to avoid that development, the U.S. has been urging European leaders to take a harder line.  The pressure on Iran, though, appears to have made no difference, prompting a direct warning this week from President Bush. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES:  The Iranians just need to know that the free world is working gets to send a very clear message.  Don‘t develop a nuclear weapon.  And the reason we‘re sending that message is because Iran with a nuclear weapon would be a very destabilizing force in the world. 

SHUSTER (on camera):  But many analysts say that North Korea turning out a nuclear weapon as a bargaining chip isn‘t the most stable development either.  And so now the Bush administration faces a difficult dilemma, how to convince two unpredictable regimes to give up their nuclear ambitions at a time when both seem determined to keep them going. 

I‘m David Shuster for HARDBALL in Washington. 

(END VIDEOTAPE)

MATTHEWS:  Thanks, David.

For an assessment of what‘s happening in North Korea, we turn to James Lilley, the former ambassador to South Korea and also to China. 

Mr. Ambassador, what are they up to over there, putting this announcement out today?

JAMES LILLEY, FORMER U.S. AMBASSADOR TO SOUTH KOREA:  Well, I think it is the usual brinkmanship.  It‘s pulling us up, through the congressmen, making us think they‘re going to join the talks and then stepping back from the talks.

And then, what they want to do is to sweeten the pot, get more money out of us, more oil, more food, maybe start up the light water reactors, get some sort of a lowering of the bar on their nuclear weapons program, where we can settle for freezing, not dismantlement.  It‘s a whole range of things they‘re trying to do, split us from our allies, cause all sorts of problems. 

And I think they‘re in very desperate circumstances, so they have to take this rather desperate move. 

MATTHEWS:  Does it matter strategically or militarily whether they have one or 10 weapons, nuclear weapons?  If they even have one, is that a problem? 

LILLEY:  In my opinion, it doesn‘t really make that much difference whether they have one or 10 or 15. 

They need it as a—let‘s say a secret weapon that they can use and threaten you without ever using it.  Some have made it very clear to them, including our allies and friends, that they draw a line on any sort of nuclear weapons testing.  So far, the North Korean haven‘t done that.  But in walking out of the talks, or suspending them—they didn‘t cancel their position—they are offending all parties. 

They‘re taking on all parties and perhaps driving them close together, which is their worst nightmare.  They want to deal with the United States alone. 

MATTHEWS:  On a scale of one to 10, what is the likelihood that they are legitimately afraid of us attacking them? 

LILLEY:  I would say probably about three that they‘re genuinely afraid.  I would say about five that they‘re using it as a device to make us the devil and make us the issue.  They‘ve tried to do that all along, justifying their program as defensive against American offensive tactics. 

But, if you look at the track record, they‘re the one that take the offensive tactics.  We‘ve never struck at them. 

MATTHEWS:  Is this—I don‘t understand—maybe you do a bit more certainly than the rest of us—the politics of North Korea internally.  We‘ve seen these pictures—we just showed them—of these people acting like synchronized swimmers, 1,000 people all clapping in unison, obviously scared to death not to look particularly loyal to the boss over there. 

Could it be that they‘re trying to jack up their people with fears of America, an old tyrant‘s trick, and they have got to keep up the juice? 

LILLEY:  No question whatsoever.  I think that is absolutely true. 

I was there in ‘95 for a week.  And I must say that it reminds you of George Orwell‘s “1984.”

MATTHEWS:  Yes. 

LILLEY:  Peace is war.  Love is hate.  Freedom is slavery.  Self-reliance means we go around with a begging bowl asking for food.  It is like a cult of personality like you‘ve never seen before. 

(CROSSTALK)

LILLEY:  What?

MATTHEWS:  Yes, there‘s no radios in that country, are there?  There‘s no satellite dishes.  There‘s no way you can communicate to the North Korean people directly. 

LILLEY:  Yes.  But they get the news.  They get the news through China and various other means. 

But, by and large, their whole effort is to cut off outside sources.  I did some monitoring when I was up there.  And they jam all of the away stuff. 

MATTHEWS:  Let me ask you about—is it possible that they could begin to traffic in nuclear materials with Libya?  There‘s some of talk of that in the press.  I was looking at the clips.  I thought Libya had given up on its program as part of a deal to get back in the oil market. 

LILLEY:  Well, I think this happened before Libya gave up the deal.  They found some traces of hexafluoride, which is of course the uranium material used in bombs, in material shipped to Libya which had the hallmark of North Korea.  This is only circumstantial evidence. 

They have tried to ship missiles, you know, to Yemen.  They have shipped missiles to Pakistan, the Nodong.  They have, of course, had a regular drug counterfeit program infiltrating drugs into Australia, Japan, Europe, places like this, to get revenue.  It is a wide effort that they make. 

But we have what you call a proliferation security initiative with our allies and friends to catch their ships to see if they‘re carrying anything.  And that‘s had some success.  But we‘ve got to seal off those areas through Russia and China as possible routes they can take to get stuff out. 

MATTHEWS:  OK, thanks, Mr. Ambassador.  We‘ll be back with Mr.  Ambassador—Ambassador James Lilley to learn more about this third leg of the axis of evil. 

And, later, Pat Robertson on the role of the religious right and President Bush‘s second-term agenda. 

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with Ambassador James Lilley.

Mr. Ambassador, thanks for joining us again tonight. 

Is there any country in the region of North Asia that likes the idea of North Korea having a nuclear bomb? 

LILLEY:  No, I don‘t think so, Chris.  I think there‘s agreement among all the major power in North Asia, China, Japan, Russia, U.S., South Korea, no nuclear weapons on the peninsula.  I think we all agree on that. 

MATTHEWS:  What about—what about the ideological connection?  Of course, we know it from the Korean War 55 years ago now the connection between China and North Korea.  Is there any allegiance from the Chinese to North Korea in this regard? 

LILLEY:  Their allegiance is very frayed, because North Korea is a very bad neighbor.  They have got about 300 North Koreans in China, 300,000, causing real problems in social stability. 

The Chinese know that the North Koreans welsh on their bets.  They take all the food and oil, don‘t pay them back for it.  And they know that if North Korea begins to develop their nuclear weapons program, other countries could do the same, including South Korea, Japan, Taiwan, etcetera.  So it is bad news for them. 

Yes, there‘s a certain socialist brotherhood.  Lips and teeth is a phrase they use.  They used that in the Korean War.  There‘s still something of that there.  But China sees it—it is a tool they play in the great game with the United States.  They don‘t want to follow our lead.  On the other hand, they don‘t want us to walk all over North Korea, get a unified Korea under Seoul allied to the United States. 

So, they have a vested interest in keeping North Korea separate and a buffer zone, keeping their own area secure. 

MATTHEWS:  How many years could you give North Korea to survive without some sort of big deal with the West to pay for them to survive? 

LILLEY:  I think you struck on a very important opponent, is your Achilles‘ heel of North Korea is the economy.  It is in terrible shape. 

You can‘t really take their weapons away from them.  But you can turn the screws on in the economy.  and that‘s why the first move we have to make is to go back and get our coalition working together in a common program to make economic support for North Korea contingent upon doing something about their nuclear weapons program.  That is the link that will work.  And it requires all parties involved. 

MATTHEWS:  Thank you very much, Ambassador James Lilley, updating us on the third leg of that axis of evil. 

How much influence does the religious right really have in this country‘s politics?  I‘ll ask Pat Robertson.  He‘s coming up next.

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  This half-hour on HARDBALL, does the mainstream media understand the role evangelical Christians play in American politics?  Pat Robertson will join us in just a moment.

But, first, let‘s check in with the MSNBC News Desk.

(NEWS BREAK)

MATTHEWS:  Welcome back to HARDBALL.

Any postgame analysis of the 2004 presidential election has to include religion.  What role did the religious right play in President Bush‘s big reelection?  And what will they expect in his second term? 

The Reverend Pat Robertson is founder and chairman of the Christian Broadcasting Network and has long been the face of the Christian right as host of “The 700 Club.” 

Dr. Robertson, I guess I want both questions answered by you.  How much power did the religious right, the evangelicals have in the past election this last November?  And what issues would you like to see the president act on in response to that big turnout? 

PAT ROBERTSON, AUTHOR, “COURTING DISASTER”:  Chris, I think it was very significant, because they‘re voting as a bloc.  And they weren‘t split.  And so I would say 22, 23 percent of the electorate were evangelicals.  And they went almost uniformly for Bush.  So it was a major factor.  It was comparable to what labor used to be for the Democrats.  And it‘s a major, major bloc. 

What do they want?  I think what the evangelicals want more than anything else is a return to moral values in this country.  I think they see this country eroding the core.  I think they‘re tired of having their cherished values trashed by courts, especially activist judges.  There‘s a certain powerlessness when you figure this guy is unelected, you can‘t touch him.

MATTHEWS:  Right.   

ROBERTSON:  And he can bring down rulings that will destroy the things that you feel are precious to you. 

I think this more than anything else.  And then, of course, you get—when the Constitution was—has been changed by the court and power has been taken away from the legislative branch and from the executive branch and given it to nonelected judges, then you have all these—well, misallocations of power.  And, consequently, the thing of abortion, the thing of gay rights, the thing about marriage and all these other things are—should be settled by legislatures and not by courts. 

MATTHEWS:  Well, let me ask you about a current fight.  We all know what happened in Massachusetts.  There was a small court up there, a rather narrow bench, and a Republican-appointed judge decide that people who are gay had a right to marry someone of their own sex.  Is that what you‘re talking about? 

ROBERTSON:  Well, that‘s just one of the things. 

But, you know, I started the American Center For Law and Justice.  And in I believe 1998 we had 102,000, 102,000 complaints from people whose faith was being abused at one point or the other in the educational system or in employment or something like that.  So, that was even before this gay rights stuff started come up.  And we see it over and over again. 

There was a case that I was reporting on today where somebody is suing the 9th Circuit to take out of its seal what they purport to have as the Ten Commandments.  It doesn‘t say anything.  It is just a couple of tablets.  And an activist is suing the 9th Circuit. 

MATTHEWS:  Let me ask you about the problem with Defense Of Marriage Act, as you see it, Doctor.

Look, the Congress acted.  Bill Clinton signed on—a piece of legislation that said a state, whether it‘s Virginia or whatever other commonwealth or state, has a right to resist any intrusion into its affairs by the courts, that you can‘t say because there‘s gay marriage approved in Massachusetts by the legislature up there that it can be inflicted, if you will, on the state of Virginia. 

The problem comes, of course, as you know, being a Yale lawyer...

ROBERTSON:  Yes. 

MATTHEWS:  ... is that a judge can say, wait a minute.  We have got a custody battle going on in Virginia.  We have got a same-sex couple up in Massachusetts who are fighting over the kid because one of them moved down to Virginia.  How do you keep it out of the courts? 

ROBERTSON:  Well, something like that, maybe you can bring into the courts. 

But the problem is what‘s called the full faith and credit.  You know, each state is supposed to give full faith and credit to the official acts of another state.  And so Massachusetts can, in a sense, impose its values on Virginia.  And the people in Virginia would have to receive a gay couple and say, you have all the attributes of fully married people. 

And you know how many states voted against that in this last election cycle.  I think there were at least eight.

MATTHEWS:  There was 11.

ROBERTSON:  Eleven of them that voted.

MATTHEWS:  Right. 

ROBERTSON:  The people are overwhelmingly against that. 

Even civil unions are not as abhorrent, if I can use that term, to the general population as marriage.  Marriage is a very sacred thing.  It‘s a very important institution.  And it is meant for the protection and nurture of children.  And that‘s—we‘re cheapening marriages.  And I think—but, again, it ought to be decided by legislatures. 

MATTHEWS:  Right. 

ROBERTSON:  I just think we vote.  If they want to vote something, then, if we don‘t like it, we can vote them out.  I think that‘s democracy. 

MATTHEWS:  OK.

ROBERTSON:  Yes. 

MATTHEWS:  Judge Scalia warned after the Lawrence decision down in Texas, where it was basically saying it was OK to have sodomy even—it was caught it—and some cops walked in the room and caught two guys doing something, that it still is covered by their civil liberties. 

ROBERTSON:  Yes. 

MATTHEWS:  What happens if a—and that court approved it.  And Scalia warned, who knows where we‘re going with this one?

ROBERTSON:  OK.

MATTHEWS:  What happens if another Judge Souter gets picked by this Bush, this President Bush, like his father, and that person has all those civil libertarian views, sort of Cato Institute views on live and let live?  How do you prevent that from happening? 

ROBERTSON:  Well, I think what do you is hope and pray and lobby as hard as you can. 

But, as far as George Bush, every pick that he‘s made for the courts in my opinion has been top-notch.  And the big thing is, do we have a Constitution that is an established document that we can refer to?  Or is it changing with the winds of sociology? 

MATTHEWS:  Yes.   

ROBERTSON:  You remember Judge Hughes said, we‘re under a Constitution, but the Constitution is what the judges say it.  We can‘t have a rule of law like that.  And so George Bush says, I‘m going to appoint judges who respect the Constitution and don‘t try to legislate from the bench. 

MATTHEWS:  Do you think the Brown decision in ‘54 was wrong about separate but equal, overturning the Plessy-Ferguson ruling of the past? 

ROBERTSON:  I think the move of civil rights has been appropriate in the courts.  They have done something—I‘m not opposed to all of the decisions of the court. 

And I think the court moved us along.  But, again, I wish in certain of these things that they had refrained and let the legislatures do it.  They will do it.  And I think the courts have jumped in.  And, you know, they tore education up pretty much in many states. 

MATTHEWS:  How about prayer in school?  Do you think courts were—the federal courts were wrong to outlaw the reading of the King James Bible in the schools? 

ROBERTSON:  One atheist, Madeline Murray O‘Hare, who has got a very checkered past—she is a weirdo—was able to take Bible reading away from Massachusetts. 

I read the defense by the assistant attorney general of Pennsylvania.  And I‘m telling you, a sophomore in high school could have written a better brief.  He took a dive on that one.  And, as a result, all of America—you know, it used to be, I have a case against you and we‘re fighting about something, whatever it is, and a court decides, OK, Chris wins.  All right, you win.  Cool.

But now we‘re saying that decision binds the whole nation.  And Abraham Lincoln said this is not something we shall do and we would have surrendered our liberties to that eminent body.  And that‘s the thing that worries me, is that—the overreach of cases. 

MATTHEWS:  What do we do, get rid of judicial review?  How do we handle this? 

ROBERTSON:  I think it can be—Marbury vs. Madison, that was the first case I learned in constitutional law.  They did—we didn‘t study the Constitution when I was at Yale.  We studied Marbury vs. Madison.  And then we went downhill from there.

I don‘t think the judges have the power to overturn acts of Congress.  John Marshall took it upon himself in Marbury vs. Madison to do that.  It was sort of a sleeper decision that has percolated.  Then, years after, they began overturning acts of Congress.  But I don‘t think they should be allowed to do that. 

MATTHEWS:  OK, thank you. 

Pat Buchanan thinks we should just have the Congress rule that, in certain cases, the courts cannot review legislative action.  That would be an interesting decision. 

ROBERTSON:  Well, it is in the Constitution. 

And, by the way, the former minority leader of the Senate advocated such a thing and included that on a farm bill, said this bill is not subject to judicial review, period.  And the Constitution permits Congress to do that.  Furthermore, the Congress could abolish the 9th Circuit if it wanted to or could abolish any circuit. 

MATTHEWS:  Well, you would love that.  That would be a feast day, wouldn‘t it? 

(LAUGHTER)

ROBERTSON:  I can hardly wait. 

MATTHEWS:  OK.  Thank you very much, Dr. Pat Robertson, for joining us.

ROBERTSON:  Thanks, Chris.  OK.

MATTHEWS:  The Bush administration is facing some saber-rattling from the other two axis of evil countries.  How should the Bush team handle a nuclear North Korea and a nuclear wanna-be, Iran?  “The National Review”‘s Byron York and “The Nation” magazine‘s Katrina Vanden Heuvel are going to join us in a minute.

You‘re watching HARDBALL. 

(COMMERCIAL BREAK)

MATTHEWS:  Coming up, facing down nuclear threats in two axis of evil countries.  Will diplomacy work in North Korea and in Iran?  And, if not, what will? 

HARDBALL returns after this.

(COMMERCIAL BREAK)

MATTHEWS:  Welcome back to HARDBALL.

The Bush administration today urged greater diplomacy in dealing with North Korea‘s admission today of holding a nuclear weapon.  And, yesterday, President Bush and Secretary of State Condoleezza Rice took a hard line with Iran. 

Byron York is the White House correspondent for “National Review” magazine.  And Katrina Vanden Heuvel is the editor of “The Nation” magazine. 

Katrina, I‘ve got to ask you, let‘s start with North Korea.  A scary guy, big guy on Jack Daniels, lives in a delusionary world, and now he says he has got a nuclear weapon. 

KATRINA VANDEN HEUVEL, EDITOR, “THE NATION”:  It‘s not a surprise, Chris.   

The intelligence communicate was saying in 1992, I think, that North Korea had nuclear weapon.  What is, is the timing.  Chris, there‘s a deal to be made here.  And the Bush administration has walked away from it on numerous occasions. 

MATTHEWS:  Would you trust him? 

(CROSSTALK)

VANDEN HEUVEL:  Well, but South Korea and China are in the region.  They‘ve been pushing the United States to say, hey, let‘s normalize relations with North Korea.  That‘s what they‘re seeking, provide economic development assistance, and stop saying you‘re going to overthrow their government, tough and deft diplomacy. 

MATTHEWS:  Right. 

VANDEN HEUVEL:  You are not going to take out these nuclear weapons with war at this stage, whatever the fantasies of the neocons are. 

MATTHEWS:  Do you think they‘re building these nuclear weapons out of self-defense against us? 

VANDEN HEUVEL:  Well, Chris, you know what‘s happened in these last few years.  Between preemptive war and the idea that a nuclear weapon is their only kind of deterrence, they look at Iraq.  And then they‘re looking at Iran now, where you see real saber-rattling.  And they may want to hold on to it. 

But, on the other hand, they have said in the last round of talks, in reciprocal steps, they will end plutonium and uranium enrichment.  Don‘t trust.  Trust, but verify, but in reciprocal steps, normalize relations, tough...

(CROSSTALK)

MATTHEWS:  Can I ask you a tough question, Katrina? 

VANDEN HEUVEL:  Yes. 

MATTHEWS:  Do you believe that the North Koreans are building a nuclear weapon, or have built one, to defend themselves against a regime change effort by the United States? 

VANDEN HEUVEL:  I think they have.  I think they‘re doing that. 

And I say, you know, there‘s no trust in these issues, Chris.  It is tough diplomacy. 

MATTHEWS:  Well, I agree.  There‘s nothing—there‘s not a lot of common ground between us and Pyongyang. 

(CROSSTALK)

VANDEN HEUVEL:  Yes, absolutely.

MATTHEWS:  Let me ask you Byron York, do you do that‘s a legitimate concern?  We had James Lilley on, who was the ambassador over in Korea for many years.  He thinks three out of 10 chances that that is what they are up to, that they are in fact afraid of us. 

BYRON YORK, WHITE HOUSE CORRESPONDENT, “THE NATIONAL REVIEW”:  I think

·         well, first of all, they‘ve been building nuclear.  They‘ve had a nuclear program going for quite a while.  The agreed framework, the 1994 deal that was going to help stop them...

MATTHEWS:  The Clinton deal.

YORK:  They were cheating on it from the get-go.  And, in the late ‘90s, Clinton appointed William Perry, his former defense secretary, as special adviser on Korea.  And he basically said, look, they‘ve got a nuclear weapons program.  In 1998, they shot a three-stage missile across Japan, in case anybody missed that. 

This is not a reaction to the Bush administration.  This is a problem from hell, because they are so heavily armed and there really are not very many good options. 

(CROSSTALK)

YORK:  And the president has been really very—he‘s been walking gingerly...

(CROSSTALK)

MATTHEWS:  You know the old political argument, don‘t get into a peeing match with a skunk? 

(LAUGHTER)

MATTHEWS:  Isn‘t it smart to stay back, no matter what your ideology is?  When you‘re dealing with North Korea, is there a hard-line approach to North Korea that works, that isn‘t dangerous? 

YORK:  Well, rhetorically, he‘s been taking a pretty soft line recently and insisting only on the six-party talks.

MATTHEWS:  Would you take that line?  Is that smart?

YORK:  Yes.  I think so.

MATTHEWS:  Soft.  Don‘t get tough with these guys.  Don‘t scare them.

YORK:  No.

(CROSSTALK)

MATTHEWS:  Because the guy is nuts, right? 

YORK:  The thing—that‘s the difference between Iran and North Korea.  The United States thinks it is possible that Iran could be shamed by the international community.  But North Korea is crazy.  So it is a different situation. 

(CROSSTALK)

VANDEN HEUVEL:  Colin Powell came in and tried to pursue the 1994 cooperative framework agreement. 

MATTHEWS:  Yes. 

VANDEN HEUVEL:  Which Clinton tried to pursue under pressure from the right.  He never met the series of reciprocal steps.  On Iran, if we go after the Cheney... 

MATTHEWS:  OK.  OK.

We‘ve got to come back, Katrina. 

We‘ll be right back with Katrina Vanden Heuvel of “The Nation” magazine, Byron York of “The National Review.”

You‘re watching HARDBALL on MSNBC. 

(COMMERCIAL BREAK)

MATTHEWS:  We‘re back with “The National Review”‘s Byron York and Katrina Vanden Heuvel of “The Nation.”

I love people that know where they stand.  And both of you do.

(LAUGHTER)

MATTHEWS:  Let me start with Katrina. 

Hillary Clinton, the latest CNN poll, Gallup poll today, 40 percent, Hillary Clinton to be the candidate next time, and John Kerry sitting there about 25 percent. 

Does that John Kerry number mean anything except name recognition at this point? 

VANDEN HEUVEL:  I don‘t think either number means much.  I really—knock off the pollsters, Chris. 

I think what‘s interesting this week is that the Clintons could not put in a candidate to stop Howard Dean from becoming chair of the DNC.

MATTHEWS:  Right.  So they don‘t control the party. 

VANDEN HEUVEL:  Yes.  And I think that‘s going to be very important moving ahead.  And you‘re going to see in Dean someone who brings clarity, conviction, passion, enthusiasm.  And he‘s knocked out a lot of the Clinton people, who had a grip on this party for many years. 

MATTHEWS:  God, he knocked out the soft-money people.  He knocked out the—he beat everybody. 

VANDEN HEUVEL:  The base—the base of the party is a different base. 

MATTHEWS:  Right. 

VANDEN HEUVEL:  The money base is a different base.  That means a lot.  And I think harnessing that grassroots, Net-roots enthusiasm is something Dean is going to be very capable of.  The Clintons have to be threatened. 

MATTHEWS:  Byron, is that scary, that Democratic Party is no longer going to be run by the money people; it‘s going to be run by the grassroots people?  Does that make them scarier?

YORK:  I think it certainly scares the money people. 

Dean met his supporters last night, mostly a group of 20-somethings.

MATTHEWS:  You were at that... 

YORK:  I was there. 

(CROSSTALK)

MATTHEWS:  That bar across the street from here.

YORK:  It was a brew pub close to Union Station. 

And he is the same old Howard Dean.  He used a lot of his stump speech about having as good a health care system as Costa Rica. 

MATTHEWS:  You have the power. 

YORK:  You have the power.  And he even kind of did one of these—on to Washington, D.C., to take back America things. 

He really doesn‘t seem very different.  And if you were going there and you wanted to hear evidence of kind of a new, more moderate, better behaved Howard Dean, you just didn‘t see it. 

(CROSSTALK)

MATTHEWS:  But don‘t parties always make the mistake of thinking the guy on the other side or the woman on the other side who is most passionate is most easy to beat?  The Democrats for years thought the easiest guy to beat was Ronald Reagan.  And they got him.

(CROSSTALK)

VANDEN HEUVEL:  I think the Dems need passion.  They need clarity of conviction. 

MATTHEWS:  I see.

VANDEN HEUVEL:  And Howard Dean, by the way, I see this as an insider-outsider thing.  I‘ve talked to Howard Dean. 

He is surprised that the nation was so supportive of his candidacy, because he doesn‘t consider himself really a man of the left.  He has many different—a range of positions, insider-outsider.  He had the support of the Alabama, the Mississippi, the Florida state party chairs.

MATTHEWS:  Yes. 

VANDEN HEUVEL:  I think it is an interesting moment. 

MATTHEWS:  What do you think of Rush Limbaugh saying this is going to be too good to believe? 

YORK:  Well, you know, “National Review” back in the Democratic primaries, put Dean on the cover with, “Please Nominate This Man.”  And then we thought about doing it again with, “Please Select This Man.”  But we don‘t want to jinx it.

Look, I think he is not a terribly good choice for all of the reasons... 

MATTHEWS:  Why do you think he won so big?  It was a shutout. 

YORK:  I think he did a lot of very, very shrewd politicking with the heads of the individual parties all through the states, promising them things, politicking better, because he is good at that.  He is good at raising money in small amounts.  He is good at a number of things.  And he‘s a very impressive individual.

MATTHEWS:  How do you explain the political impotence of the Clintons in this case? 

YORK:  But one last thing.  He absolutely failed in contact with the voters.  He just could not...

MATTHEWS:  Well, he is not running as a candidate. 

VANDEN HEUVEL:  Yes. 

MATTHEWS:  He is running as a party organizer.

VANDEN HEUVEL:  He‘s perfect for this role.

MATTHEWS:  He doesn‘t have to pass the personality test.  He has to pass the organizational—why do you think the Clintons have lost their clout, Katrina? 

VANDEN HEUVEL:  Because I think the Democratic Party wants to move on. 

I think—let‘s not forget, Howard Dean talks about issues like corporate power, talks about trade issues in a different way.  And I think the party is a different party.  And the grip of—Clinton won his races, but he didn‘t leave the Democratic Party that was strong.  And Howard Dean wants to come in, as did he with his Democracy for America group, rebuild the state parties. 

YORK:  Howard Dean is going to be a choice, not an echo kind of guy.  And the Clintons, you have to remember he is the only guy who got elected and reelected as a Democrat in a long, long time. 

MATTHEWS:  You know, I find him a bit tone-deaf on some cultural issues, I think.

Katrina, challenge me on this.  He referred on this show a couple of months ago to abortion as a medical procedure.  It‘s not like having your appendix out. 

VANDEN HEUVEL:  I don‘t think—listen...

(CROSSTALK)

MATTHEWS:  I think you have to address these things a little more carefully, it seems to me, if you‘re going to represent an entire political party.

VANDEN HEUVEL:  Well, first, let‘s not forget, he is a doctor. 

But I think he is talking about making abortions safe legal, rare and talking....

MATTHEWS:  Well, that sounds good to me.

(CROSSTALK)

VANDEN HEUVEL:  But I do what is interesting, Chris—he said this on your show. 

MATTHEWS:  Yes. 

VANDEN HEUVEL:  He talks in passionate ways about issues that have been off the radar of Democrats for too long, media consolidation.  On your program, you engaged him and he talked about the problems with that in this country. 

YORK:  Media consolidation is a loser issue.

VANDEN HEUVEL:  It isn‘t.

YORK:  Favored by the MoveOn crowd.  It just is. 

VANDEN HEUVEL:  Hey, Byron...

MATTHEWS:  OK, you guys are great. 

By the way, this is very fruitful, this argument.  I think it‘s great, because I think we‘re going to know in a month or two whether Dean is the man or not, whether he does the job or not.

Thank you, Byron York, great reporter. 

Thank you, Katrina.

VANDEN HEUVEL:  Thank you. 

MATTHEWS:  Great reporter, Vanden Heuvel, herself.

Tomorrow on HARDBALL, I‘ll be joined by the newest member of the MSNBC family, Tucker Carlson, pronounced Tucker.

Right now, it‘s time for the “COUNTDOWN” with Keith.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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